Monday, October 07, 2013

In Defense of the Constitution

Democracy is dead, and the Constituion is responsible. That, at any rate, seems to be the emerging consensus among some of America's smarter left of center bloggers. Last week, Dylan Matthews of Wonkblog laid the blame for the current government shutdown not on President Obama or Ted Cruz, but on James Madison: 
This week's shutdown is only the latest symptom of an underlying disease in our democracy whose origins lie in the Constitution and some supremely misguided ideas that made their way into it in 1787, and found their fullest exposition in Madison's Federalist no. 51.
Matthews' opinion was seconded by Matt Yglesias, who argued that ultimately "America was doomed" because of our presidential system of government. And this weekend Jonathan Chait argued that the current budget battles might have been "destined all along" due to our constitutional structure. 

Matthews, Yglesias, and Chait all based their claims on a 1990 essay by political scientist Juan Linz, The Perils of Presidentialism. Written during the wave of democratization that coincided with the end of the Cold War, Linz's essay lists a number of dangers arising from a strong presidency, and argues that newly democratic nations ought to consider adopting a parliamentary system of government (like that of Germany) rather than a presidential one (like we have here in the U.S.).  

It's a good essay, and if one were designing a system of government from scratch, particularly in a society without a long tradition of democratic self-government, Linz's concerns ought to be taken seriously. But there is something a little odd about seeing The Perils of Presidentialism being cited as an argument by those who wish that the House of Representatives would be more accommodating to the President. As the title suggests, The Perils of Presidentialism is chiefly concerned that come from the president having too much power. 

For example, Linz argues that because the president alone is elected by the whole nation, he and his supporters "may be tempted to define his policies as reflections of the popular will and those of his opponents as the selfish designs of narrow interests." This certainly is a temptation. In fact, it seems to be a strong temptation for Chait himself, who describes today's GOP as "a party large enough to control a chamber of Congress yet too small to win the presidency." Matthews likewise suggests that his personal favorite theory of democracy is summed up in a statement by Max Weber: "In a democracy the people choose a leader in whom they trust. Then the chosen leader says, 'Now shut up and obey me." 

It gets worse. According to Linz, there is also a danger that the president will "use ideological formulations to discredit his foes," perhaps, for example, by referring to them as nihilists, anarchists, terrorists, etc.

And then there is the timing factor. Linz' also argues that, because of presidential term limits, a president's 
awareness of the time limits facing him and the program to which his name is tied cannot help but affect his political style...  This exaggerated sense of urgency on the part of the president may lead to ill-conceived policy initiatives, overly hasty stabs at implementation, unwarranted anger at the lawful opposition, and a host of other evils. 
Ultimately, Linz fears, frustration with legislative unwillingness to go along with presidential policy might lead to a military coup, or other forms of violence

While it's fun to speculate about alternative systems of government, America is not at risk of devolving into a military dictatorship any time soon. For all our faults, the U.S. is in fact one of the most successful countries in the history of the planet, and our constitutional structure, with its system of divided power, is one of the reasons for that. If you want to attack the House Republicans, be my guest. But leave James Madison out of it.   

UPDATE: On Twitter, Adam Gurri directs me to a piece of his that sums up my thinking perfectly: 
Rather than judging institutions on the basis of theory, we ought to be looking at their resilience; how they stand the test of time. The electoral college is frequently a target of criticism and ridicule by people who feel it is outdated, but it is precisely because its life can be measured in centuries rather than decades that we should trust it by default. At least, we should trust it more than the simple stories proffered by pundits and scholars. 
The more I learn about the Swiss canton system, the crazier it seems to me. Yet there are some cantons that have been in continual existence for something like 700 years—and Switzerland is a very wealthy and very peaceful nation. We should not conclude from this that their system of government should be spread to every corner of the Earth, but it is clear that there is something about the system as it operates in Switzerland that works.  


  1. Anonymous7:39 AM

    "While it's fun to speculate about alternative systems of government, America is not at risk of devolving into a military dictatorship any time soon."

    The power of the president to have any citizen arrested, jailed, tortured, and killed -- at whim, accountable to no one -- is clearly a side issue, because it was after all given to him by the Congress.

  2. Anonymous8:08 AM

    While it's fun to speculate about alternative systems of government, America is not at risk of devolving into a military dictatorship any time soon. For all our faults, the U.S. is in fact one of the most successful countries in the history of the planet, and our constitutional structure, "

    That's reassuring to know; nevermind the USA has the highest incarceration rate in the world and has imposed military rule on sovereign countries without provocation. yes, we're a beacon of freedom unless you're one of the millions put away under mandatory minimum sentences for non-violent crimes.

    Noah, these writers suck. fire them and just let the blog be dormant until you return.

  3. You're ignoring the central reason why people are citing Linz.

    Linz wrote: "the only presidential democracy with a long history of constitutional continuity is the United States . . . [a]side from the United States, only Chile has managed a century and a half of relatively undisturbed constitutional continuity under presidential government—but Chilean democracy broke down in the 1970s. … in a presidential system, the legislators, especially when they represent cohesive, disciplined parties that offer clear ideological and political alternatives, can also claim democratic legitimacy. … One might argue that the United States has successfully rendered such conflicts “normal” and thus defused them. … the uniquely diffuse character of American political parties … has something to do with it."

    But we don't have ideologically diffuse parties anymore. The furthest left Republican is to the right of the furthest right Democrat. So the problems Linz identified now apply to the US.

    And the legislators are claiming democratic legitimacy-- that was more or less Ted Cruz's thesis in his show on the Senate floor-- by citing polls in a misleading and tendentious manner, despite having won about 1.6 million fewer votes for the House than did the Democrats in 2012.

    Even if you think Linz is inapposite for some reason, as to the larger point, I don't think anyone thinks that the Republicans' nihilistic behavior is defensible.

    Judge Posner, for instance, writes, "a debt ceiling is unlikely to reduce the size of government. But it is pernicious, in inviting political tactics that could well be thought to violate the Constitution, or at least the spirit of the Constitution. ... the Republicans are not in a position to repeal or even amend the law by constitutionally authorized means, because repeal or amendment would require a majority vote in both houses of Congress (actually a two-thirds vote in both houses, for given a lesser majority Obama could veto a repeal or amendment without fear of being overridden). The intention, which is contrary to the structure of the federal legislative process ordained by the Constitution, is to coerce Congress to repeal (or by amendments to defang) Obamacare by threatening to precipitate an economic crisis by refusing to vote for an increase in the debt ceiling. If the tactic succeeded, it would mean that a minority in Congress had succeeded in amending a federal statute."

    Republicans, having abandoned rational policy beliefs for an intense feeling of tribalism, are attacking the soft underbelly of our system as set out in the Constitution.

  4. Bill Ellis1:42 PM

    Josiah Neeley, What a disappointing post.

    An assertion that we are in no danger of a coup and an assertion that the reason we have been successful is because of "our constitutional structure" is no defence of our Constitution. You have made no argument at all.

    You are saying that if we had had a parliamentary system that some how we would have been less able to marshal our natural geographic advantages ( Place, resources & population) into a position of world domination. That would be a huge statement to make. How would you explain the success of European economies that have been endowed with far less ?
    Your assertion is Ridiculous. You got nothing.

    As someone who decided that we would be better off with a parliamentary system 25 years ago...I have been looking for arguments to the contrary for a long time. I have not found any convincing ones. The best ones focus on States rights issues,(you might want to go at it from that angle ) but they can be brushed aside too.

  5. Schadenboner2:00 PM


    You owe your readers an apology for the absurdity of "Randomize ObamaCare!" ( Until you have made such an exculpatory (or "miaculpatory" if you will) introductory paragraph I'm not sure why anyone should bother reading you or why this site should continue hosting your poorly written, poorly argued, deeply unserious ideas.

    And, having read this article against my better judgement, I must say that we are now owed two apologies for your two terrible posts.

    1. Anonymous1:38 AM

      TWO terrible posts? What about the one titled "Corporate Personhood is Awesome," explaining that Citizens United is a modest, unremarkable, and tragically underappreciated decision protecting our cherished right of free speech?

    2. Schadenboner8:25 AM

      Give me a break. I have to start counting somewhere, ok?

      But you're right, he has a pretty long list of miaculpatories to work through (and yes, I'm running with that phrase, damnnit.)

      The first step to solving a problem is admitting you have one, Josiah. Say it with me: "My name is Josiah Neeley and I'm an unseriousaholic".

  6. One of the reasons for the success of the Senate filibuster is that it prevents rapid flip flops in policy as demonstrated by the House. It might be good to prevent the blockage of votes though, since there would be no crisis if an open vote were possible.

    1. Anonymous2:44 PM

      The success of the Senate filibuster? As in its use for defending segregation? Preventing the appointment of Federal Judges?

      I could actually go on for a long time, but lack motivation. I'll just say that I know of nothing good that ever came of the filibuster, but much bad. The current use by the Republicans to paralyze the government is simply the logical conclusion of what went before.

  7. I get the framing argument that the stability and longevity of the US Republican is an important historical proof in support of the viability of the system against past challenges. But I just can't discern any arguments here about why that proof insures the US system for the future, such that it can adapt and flourish.

    There was no discussion of well-understood flaws with the US political system, including the electoral college and the Senate, the control state legislatures have over election law, and the general suffusion of money and lobbyists in politics. But more importantly, for our purposes, there wasn't even a hint that curative action on these fronts was possible or even likely. Clearly it isn't, though perhaps campaign finance could be revisited if Hillary can make a further appointment to the Supreme Court.

    So essentially the author relies on a binary sleight of hand, to suggest it either works or it doesn't. That might be apt to counter over-the-top rhetoric about US decline, but when the issue framed about sub-optimal and dysfunctional outcomes, it's clear there is a serious case.

    1. to suggest it either works or it doesn't.

      Or at least it works until it doesn't.

  8. Martin1:30 AM

    Oh my, another one who thinks he must transform his Luv for a country into an overblown statement of fact, thusly descending into national chauvinism without further ado (and, for good measure, invoking the history of the planet, because those dinosaurs, of course, did not have a country as successful as the USA; and all those "countries" like Ancient Egypt that are so easily compared to modern nations are invoked, too; also, other planets might have had some more successful countries, though, but the specification suggests that there is only one, which makes its mention a bit superfluous? However you think about it, it makes so much sense!).

  9. SeekTruthFromFacts7:41 AM

    This argument appears to assume that the presidential system is the only variable responsible for US success. This is bizarre. If the US became a dictatorship and Western Sahara was the world's only presidential state, would we expect them to reverse their economic performances?

    The Swiss cantons' success might be influenced by geography (the convenience for larger neighbours of having a buffer state; control of trans-Alpine trade bottlenecks), neutrality, Calvinism, multilingualism, having such rubbish mountainside farmland that mercenary soldiering becomes a better option and many other factors....

  10. Anonymous12:40 PM

    "Rather than judging institutions on the basis of theory, we ought to be looking at their resilience; how they stand the test of time"

    From which we can conclude that the best form of government is the Papacy.

    1. Martin8:50 PM

      From which on could have concluded that various forms of government now long defunct are awesome, at various points in history, even in the history of the planet (ours, that is).

    2. Did he remember the civil war? Was that a failure point?

    3. Martin11:58 AM

      Well, one could perhaps argue that it was, given the outcome? Especially if you compare what Europe was doing back then and had been doing since about half a century ago? I think the US stands out pretty well in comparison for the last century, at the very least.

      Anyway, it's not that it were offensive to point to the US obviously being a very successful nation. But contrary to what the author apparently thinks, he has not argued how this is important to the topic at hand (he will probably have noticed that most commenters here didn't get it either). And also, he blows a simple statement about a successful country so out of proportion that it doesn't make any sense. This is Michele Bachman style right there, it only lacks a link to the US Consitution, and there is no sign that his statment was tongue-in-cheek. (And one really must have a severely deranged perception of time if one thinks that the success of the US has been lasting long in historical terms, as to make a claim about "resilience". Ironically, the point about the US being a sustainably successful nation could, for example, be made by invoking theory - say, some Acemoglu/Robinson type argument - that is, exactly what the author dismisses for the sake of alluding to some historical tendency that is simply laughable on its own, for several reasons.)

  11. I think constitutions need to be rewritten every two generations (i.e. roughly every 50 years). Piecemeal changes tend to produce incoherence, and well time moves on. A major constitutional rewrite also gets people to concentrate on their common interests rather than their differences.

  12. Maybe a useful twist to rewriting the constitution every two generations, would be to delay the implementation of the new constitution for another 25 years. That might really defuse the tactical hijacking of the process.

    1. Schadenboner12:25 PM

      This is probably the easiest way to (at least try to) introduce a veil of ignorance type thing. It's also the best way I can think of.

  13. Anonymous9:14 AM

    A sadder example of lefty critiques of the Constitution is Rosa Brook's "Blood on the Constitutiton" in FP. I profoundly identify with her anger but can't agree with the suggestion: